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remedy in the law for all wrongs against his person or his property, and cannot be compelled to buy justice, or to submit to conditions not imposed upon his fellows as a means of obtaining it. Nor can a party by his misconduct so forfeit a right that it may be taken from him without judicial proceedings in which the forfeiture shall be declared in due form. Forfeitures of rights and property cannot be adjudged by legislative act, and confiscations without a judicial hearing after due notice would be void as not being due process of law. Even Congress, it has been held, has no power to protect parties assuming to act under the authority of the general government, during the existence of a civil war, by depriving

persons illegally arrested by them of all redress in the [* 363] courts.3 * And if the legislature cannot confiscate property

or rights, neither can it authorize individuals to assume at

6 Shep. 109; Engle v. Schurtz, 1 Mich. 150 ; Confiscation Cases, 7 Wall. 454; Washburn v. Franklin, 35 Barb. 599; Welch v. Wadsworth, 30 Conn. 149; O'Kelly v. Athens Manuf. Co., 36 Geo. 51 ; United States v. Tynen, 11 Wall. 88; Chicago & Alton R.R. Co. v. Adler, 56 Ill. 350; post, 383. See also Curtis v. Leavitt, 17 Barb. 309, and 15 N. Y. 9; Coles v. Madison County, Breese, 115; Parmelee v. Lawrence, 48 Ill. 331; post, 375–376.

1 Thus, a person cannot be precluded by test oaths from maintaining suits. McFarland v. Butler, 8 Minn. 116; ante, 289, note. See post, 368, 369, note.

? Griffin v. Mixon, 38 Miss. 434. See next note. Also Rison v. Farr, 24 Ark. 161 ; Hodgson v. Millward, 3 Grant's Cas. 406. But no constitutional principle is violated by a statute which allows judgment to be entered up against a defendant who has been served with process, unless within a certain number of days he files an affidavit of merits. Hunt v. Lucas, 97 Mass. 404.

3 Griffin v. Wilcox, 21 Ind. 370. In this case the act of Congress of March 3, 1863, which provided “that any order of the president or under bis authority, made at any time during the existence of the present rebellion, shall be a defence in all courts, to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress," was held to be unconstitutional. The same decision was made in Johnson v. Jones, 44 III. 142. It was said in the first of these cases that “ this act was passed to deprive the citizens of all redress for illegal arrests and imprisonments; it was not needed as a protection for making such as are legal, because the common law gives ample protection for making legal arrests and imprisonments.” And it may be added that those acts wbich are justified by military or martial law are equally legal with those justified by the common law. So in Hubbard v. Brainerd, 35 Conn. 563, it was decided that Congress could not take away a vested right to sue for and recover back an illegal tax which had been paid under protest to a collector of the national

See also Bryan v. Walker, 64 N. C. 146. Nor can the right to have

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their option powers of police, which they may exercise in the condemnation and sale of property offending against their regulations, or for the satisfaction of their charges and expenses in its management and control, rendered or incurred without the consent of its owners. And a statute * which authorizes a [* 364] party to seize the property of another, without process or a void tax sale set aside be made conditional on the payment of the illegal tax. Wilson v. McKenna, 52 Ill. 44; and other cases cited, post, 368, 369, note. The case of Norris v. Doniphan, 4 Met. (Ky.) 385, may properly be cited in this connection. It was there held that the act of Congress of July 17, 1862, "to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” in so far as it undertook to authorize the confiscation of the property of citizens as a pun. ishment for treason and other crimes, by proceedings in rem in any district in which the property might be, without presentment and indictment by a grand jury, without arrest or summons of the owner, and upon such evidence of his guilt only as would be proof of any fact in admiralty or revenue cases, was unconstitutional and void, and therefore that Congress had no power to prohibit the State Courts from giving the owners of property seized the relief they would be entitled to under the State laws. A statute which makes a constitutional right to vote depend upon an impossible condition is void. Davies v. McKeeby, 5 Nev. 369. See further State v. Staten, 6 Cold. 243; Rison v. Farr, 24 Ark. 161; Hodgson v. Millward, 3 Grant, 406. Where no express power of removal is conferred on the executive, he cannot declare an office forfeited for misbehavior; but the forfeiture must be declared in judicial proceedings. Page v. Hardin, 8 B. Monr. 648; State v. Pritchard, Law Reg. Aug. 1873, p. 514.

1 The log-driving and booming corporations, which were authorized to be formed under a general law in Michigan, were empowered, whenever logs or lumber were put into navigable streams without adequate force and means provided for preventing obstructions, to take charge of the same, and cause it to be run, driven, boomed, &c., at the owner's expense; and it gave them a lien on the same to satisfy all just and reasonable charges, with power to sell the property for those charges and for the expenses of sale, on notice, either served personally on the owner, or posted as therein provided. In Ames v. Port Huron Log-Driving and Booming Co., 11 Mich. 147, it was held that the power which this law assumed to confer was in the nature of a public office; and Campbell, J., says: " It is difficult to perceive by what process a public office can be obtained or exercised without either election or appointment. The powers of government are parcelled out by the Constitution, which certainly contemplates some official responsibility. Every officer not expressly exempted is required to take an oath of office as a preliminary to discharging his duties. It is absurd to suppose that any official power can exist in any person by his own assumption, or by the employment of some other private person; and still more so to recognize in such an assumption a power of depriving individuals of their property. And it is plain that the exercise of such a power is an act in its nature public, and not private. The case, however, involves more than the assumption of control. The warrant, and to sell it without notification to the owner, for the punishment of a private trespass, and in order to enforce a penalty against the owner, can find no justification in the Constitution.


corporation, or rather its various agents, must of necessity determine when the case arises justifying interference; and having assumed possession, it assesses its own charges; and having assessed them, proceeds to sell the property seized to pay them, with the added expense of such sale. These proceedings are all ex parte, and are all proceedings in inritum. Their validity must therefore be determined by the rules applicable to such cases. Except in those cases where proceedings to collect the public revenue may stand upon a peculiar footing of their own, it an inflexible principle of constitutional right that no person can legally be devested of his property without remuneration, or against his will, unless he is allowed a hearing before an impartial tribunal, where he may contest the claim set up against him, and be allowed to meet it on the law and the facts. When his property is wanted in specie, for public purposes, there are methods assured to him whereby its value can be ascertained. Where a debt or penalty or forfeiture may be set up against him, the determination of his liability becomes a judicial question; and all judicial functions are required by the Constitution to be exercised by courts of justice, or judicial officers regularly chosen. He can only be reached through the forms of law upon a regular hearing, unless he has by contract referred the matter to another mode of determination."

A statute of New York authorized any person to take into his custody and possession any animal which might be trespassing upon his lands, and give notice of the seizure to a justice or commissioner of highways of the town, who should proceed to sell the animal after posting notice. From the proceeds of the sale, the officer was to retain his fees, pay the person taking up the animal fifty cents, and also compensation for keeping it, and the balance to the owner, if he should claim it within a year. In Rockwell v. Nearing, 35 N. Y. 307, 308, Porter, J., says of this statute: “The legislature has no authority either to deprive the citizen of his property for other than public purposes, or to authorize its seizure without process or warrant, by persons other than the owner, for the mere punishment of a private trespass. So far as the act in question relates to animals trespassing on the premises of the captor, the proceedings it authorizes have not even the mocking semblance of due process of law. The seizure may be privately made; the party making it is permitted to conceal the property on his own premises; he is protected, though the trespass was due to his own connivance or neglect; he is permitted to take what does not belong to him without notice to the owner, though that owner is near and known; he is allowed to sell, through the intervention of an officer, and without even the form of judicial proceedings, an animal in which he has no interest by way either of title, mortgage, pledge, or

and all to the end that he may receive compensation for detaining it without the consent of the owner, and a fee of fifty cents for his services as an informer. He levies without process, condemns without proof, and sells without execution." And he distinguishes these proceedings from those distraining cattle, damage feasant, which are always remedial, and under which the party was authorized to detain the property in pledge for the payment of his damages. See

lien ;

Limitation Laws.

Notwithstanding the protection which the law gives to vested rights, it is possible for a party to debar himself of the right to assert the same in the courts, by his own negligence or laches. *If one who is dispossessed “ be negligent for a [* 365] long and unreasonable time, the law refuses afterwards to lend him any assistance to recover the possession merely, both to punish his neglect (nam leges vigilantibus, non dormientibus subveniunt), and also because it is presumed that the supposed wrong-doer has in such a length of time procured a legal title, otherwise he would sooner have been sued.”i Statutes of limitation are passed which fix upon a reasonable time within which a party is permitted to bring suit for the recovery of his rights, and which, on failure to do so, establish a legal presumption against him that he has no rights in the premises. Such a statute is a statute of repose. Every government is under obligation to its citizens to afford them all needful legal remedies ; 3 but it is not bound to keep its courts open indefinitely for one who neglects or refuses to apply for redress until it may fairly be presumed that the means by which the other party might disprove his claim are lost in the lapse of time.*

When the period prescribed by statute has once run, so as to cut


also opinion by Morgan, J., in the same case, pp. 314-317, and the opinions of the several judges in Wynebamer v. People, 13 N. Y. 395, 419, 434, and 468. Compare Campbell v. Evans, 45 N. Y. 356; Cook v. Gregg, 46 N. Y. 439.

1 3 Bl. Com. 188; Broom, Legal Maxims, 857.

? Such a statute was formerly construed with strictness, and the defence under it was looked upon as unconscionable, and not favored; but Mr. Justice Story has well said, it has often been matter of regret in modern times that the decisions bad not proceeded upon principles better adapted to carry into effect the real objects of the statute; that instead of being viewed in an unfavorable light as an unjust and discreditable defence, it bad not received such support as would have made it what it was intended to be, emphatically a statute of repose. It is a wise and beneficial law, not designed merely to raise a presumption of payment of a just debt from lapse of time, but to afford security against State demands after the true state of the transaction may have been forgotten, or be incapable of explanation by reason of the death or removal of witnesses. Bell v. Morrison, 1 Pet. 360. See Leffingwell v. Warren, 2 Black, 599.

3 Call v. Hagger, 8 Mass. 430.

• Beal v. Nason, 2 Shep. 344; Bell v. Morrison, 1 Pet. 360; Stearns v. Gittings, 23 Ill. 387; State v. Jones, 21 Md. 437.


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off the remedy which one might have had for the recovery of property in the possession of another, the title to the property, irrespective of the original right, is regarded in the law as vested in the possessor, who is entitled to the same protection in respect to it which the owner is entitled to in other cases. A subsequent repeal of the limitation law could not be given a retroactive effect, so as to disturb this title. It is vested as completely and perfectly, and is as safe from legislative interference as it would have been if it had been perfected in the owner by grant, or any species of assurance.

All limitation laws, however, must proceed on the theory that the party, by lapse of time and omissions on his part, has forfeited

his right to assert his title in the law.3 Where they relate [* 366] to * property, it seems not to be essential that the adverse

claimant should be in actual possession ;4 but one who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another, for failure to bring suit against that other within a time specified to test the validity of a claim

which the latter asserts, but takes no steps to enforce. It has I consequently been held that a statute which, after a lapse of five

years, makes a recorded deed purporting to be executed under a statutory power conclusive evidence of a good title, could not be

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· Brent v. Chapman, 5 Cranch, 358; Newby's Adm’rs v. Blakey, 3 H. & M. 57 ; Parish v. Eager, 15 Wis. 532; Baggs's Appeal, 43 Penn. St. 512; Leffingwell v. Warren, 2 Black, 599. See cases cited in next note.

? See Knox v. Cleveland, 13 Wis. 249; Sprecker v. Wakelee, 11 Wis. 432; Pleasants v. Rohrer, 17 Wis. 557 ; Moor v. Lisce, 29 Penn. St. 262; Morton v. Sharkey, McCahon (Kan.), 113; McKinney v. Springer, 8 Blackf. 506; Stipp o. Brown, 2 Ind. 647; Wires v. Farr, 25 Vt. 41 ; Davis v. Minor, 1 How. (Miss.) 183; Holden v. James, 11 Mass. 396 ; Lewis v. Webb, 3 Greenl. 326; Woart v. Winnick, 3 N. H. 473; Martin v. Martin, 35 Ala. 560; Briggs v. Hubbard, 19 Vt. 86; Thompson v. Caldwell, 3 Lit. 137; Wright v. Oakley, 5 Met. 400; Couch v. McKee, 1 Eng. 495; Atkinson v. Dunlap, 50 Me. 111; Girdner v. Stephens, 1 Heis. 280; 8. c. 2 Am. Rep. 700; Bradford r. Shine's Adm'r, 13 Fla. 393; s.c. 7 Am. Rep. 239. But the statute of limitations may be suspended for a period as to demands not already barred. Wardlaw v. Buzzard, 15 Rich. 158; Caperton v. Martin, 4 W. Va. 138; s. c. 6 Am. Rep. 270; Bender v. Crawford, 33 Tex. 745; s. c. 7 Am. Rep. 270.

3 Stearns v. Gittings, 23 Ill. 389; per Walker, J., Sturgis v. Crowninshield, 4 Wheat. 207, per Marshall, Ch. J.; Pearce v. Patton, 7 B. Monr. 162; Griffin v. McKenzie, 7 Geo. 163; Coleman v. Holmes, 44 Ala. 125. * Stearns v. Gittings, 23 Ill. 389; Hill v. Kricke, 11 Wis. 442.

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